In the end it was a damp squib. The hugely hyped petition before a hurriedly constituted constitution bench of the Supreme Court, challenging the legality of Vice President Venkaiah Naidu’s rejection of a Congress led impeachment (of Chief Justice Dipak Misra) motion was quickly withdrawn on Tuesday (May 8) by senior advocate Kapil Sibal, on a mere technicality.

The petition will be now categorized as dismissed as withdrawn.

Sibal was representing two Congress Rajya Sabha MPs, Pratap Singh Bajwa and Amee Harshadray Yajnik, who had made that petition. In court, though, it was pointed out by another counsel that Sibal had been an MP (hence would be an interested party).

Sibal, even before the actual hearings started on the petition per se, wanted to know who set up the constitution bench sitting in court No. 6 – comprising Justices A K Sikri, S A Bobde, Justice N V Ramana, Justice Arun Mishra and Adarsh Kumar Goel. He wanted to see the order. The issue, obviously, emanated from the fact that when the issue was first presented for listing before the court of Justice Jasti Chelameswar, the judge had said that he could not help, because the CJI is the master of the roster and the listings should be according to his (the CJI’s) directions. At that Sibal had said that this was not possible, because it was a case of the impeachment of the CJI himself. So how could he decide on the bench?

Sibal could also have been angered to find none of the four “rebel” judges – Justices Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph – was on the bench. That was when he withdrew.

This was how arguments in court went.

As the submissions began at court No. 6, the lead counsel mentioned that the lawyer representing the CJI impeachment case (Sibal) was once a minister. At that Sibal said: “If I cannot address the court, it’s ok. But I am challenging the chairman’s (Rajya Sabha) order.”

“What is to be decided by the court is that how to maintain a balance between the fact that dignity and independence of the court is maintained and that the process of the judiciary is updated. We don’t doubt that the CJI is the master of the roster. We are not challenging the master of the roster; that power resides in the office of the Chief Justice,” he said.

He said (without mentioning any name) that one counsel mentioned in court No. 1 (the chief justice’s court) about impeachment “rather he tried to mention about it but he was not allowed to complete his mentioning.”

He added: “Is the master of the roster and his constitutional powers there to execute his powers at the disposal of his whims and fancies? If so, In that case, what should we do? If you say that this cannot be challenged, then in the history of law, it shall be the only exception under the rule of law in this country that the orders of the master of the roster cannot be challenged.”

Sibal said he wishes to know who gave this administrative order (of forming this bench) and what does it mean? Also, he said he wishes to have a copy of the same (order). He said that reference to a constitutional bench can only be made under a judicial order and not under an administrative order. This he said, while interpreting article 143(3).

He said that if the authority happens to be the CJI, the petitioners are entitled to be told about the order and the copy is to be served.

Sibal said he was informed late that his case is listed before the constitution bench. This is not how it should be done. “The case itself is not admitted and the lordships are not even sure whether they will admit it or not. Overnight such a case is listed before a constitutional bench,” he said.

Attorney General KK Venugopal said that there might be cases where the matter is directly placed before the constitutional bench. It would be inappropriate for such a case to be listed before a divisional bench. In saying so, he referred to a 2005 judgment.

Then, in the middle of the proceedings, a counsel presented an order from the court stating that a member of the legislature cannot practice as an advocate. The bench questioned the counsel if “we can restrain anyone from practising their profession”. The bench declined this and said that appropriate action would be taken. However, the counsel has no right to hinder the proceedings of the court, the bench observed.

Sibal asked, if the administrative order of the CJI can be challenged in the court of law. Justice Sikri said: “In that case, you’re asking us to give you that order.”

Sibal said: “It cannot be a secret document that the order cannot be provided. The document doesn’t fall under the national security act.”

At that point Justice Sikri said: “If you want to proceed, then argue on merits (of the case, which is about Naidu’s rejection of the impeachment motion).”

That was when Sibal withdrew.

—India Legal Bureau